You should tell your passengers

[old man emu]

How liable is the pilot, or owner, or operator of an airplane for injuries suffered by a passenger during a recreational flight?

 

I started looking into this situation when it was mentioned that the pilot who died at Katoomba at the end of February just passed, had been involved in Civil litigation as a result of a forced landing during an instructional flight. The bare basics of the case were that the engine failed during flight and the plaintiff claimed he was injured in the ensuing forced landing. The whys and wherefores of the engine failure are not relevant here.

 

The decision of the Court was that the defendant (the pilot) "cannot be held liable in negligence for the injury sustained by the plaintiff by reason of the provisions of section 5L" (of the Civil Liability Act 2002 - NSW) which says:

 

5L No liability for harm suffered from obvious risks of dangerous recreational activities

 

(1) A person "the defendant" ) is not liable in negligence for harm suffered by another person ("the plaintiff" ) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

 

(2) This section applies whether or not the plaintiff was aware of the risk.

 

5F Meaning of "obvious risk"

 

(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

 

(2) Obvious risks include risks that are patent or a matter of common knowledge.

 

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

 

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

 

5K Definitions

 

(1) In this Division:

 

(2) dangerous recreational activity means a recreational activity that involves a significant risk of physical harm.

 

(3) obvious risk has the same meaning as it has in Division 4.

 

(4) recreational activity includes:

 

(a) any sport (whether or not the sport is an organised activity), and

 

(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

 

© any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

 

In its judgement, the Court commented,

 

"69. As common sense dictates, if something does "go wrong" with the operation of an aircraft in flight, including landing it, there is a significant risk of physical harm. Taking into account the height at which light aircraft operate, and the speed at which they travel while landing, as matters about which there can be no controversy, I have no doubt that at the appropriate level of abstraction which is necessary in considering this matter that there was a significant risk of physical harm."

 

The Court illuminated its opinion by the following comparison,

 

"The activity in which the plaintiff was involved is in a similar category to recreational parachute jumping, statistically safe, but involving some (lesser) risk of danger.

 

The upshot of all this is that if you advise a passenger that flying in a non-commercial situation is, per se, a dangerous recreational activity, and your passenger boards your airplane afterwards, then you are not liable for any injuries the passenger might suffer if you are competent to fly the airplane, and do so to the extent of your competency.

 

Old Man Emu

 

 

[facthunter]

Lawyerspeak but good stuff. Fly at YOUR own risk. If that bothers you just watch television. Isn't THAT the essence of OUR Aviation? Nev

 

 

[Jaba-who]

The kicker is that very last phrase.

 

This is where the lawyers would try to get you by claiming that something you did was negligent. It might be that you didn't do a proper preflight, that you took some risk that a competent pilot would not etc.

 

I think I read on this forum that the guy who hit the Ferris wheel has had a claim against him which in part said something like the conditions on the day were beyond his capabilities.

 

And now days there is even an extension out beyond the victim. After that Cessna 206 skydiving plane went in a few years back and killed skydivers one of the passengers relatives sued the pilot for the psychological trauma even though the relative was not part of any of the consent and acceptance of risk and the victims had obviously consented to accept the risk.

 

Personally I don't take anyone for flights anymore except other pilots who fly home builts and my partner who knows the whole story of flying home builts and risk.

 

The other thing to take into account is the earning potential of the passenger. Crash and kill or maim a doctor or lawyer and they or their estate will sue for the lost earnings which could be gazillions. Whereas kill a garbo or an unemployed brickie and the lost earnings will be substantially less.

 

 

[facthunter]

I take other pilots as students and hardly anyone else except my wife, or I fly with other pilots (I trust). I don't want to lose my house. Nev

 

 

[Bruce Tuncks]

Another ploy would be to own nothing. There was a lot which I think were selling family trusts with the idea that this put your assets beyond litigants reach.

 

If I sell the house then I may put the new one in the wife's or kid's name for this reason, and the same with some other stuff. I could claim that I lost my share at the pokies.

 

Is there any case history on whether this works?

 

 

[Jabiru7252]

At my age, if somebody tried to sue me, I'd tie them up with piano wire and toss them in a river then spend the rest of my days playing cards and watching Foxtel as a guest of her Majesty.

 

 

[old man emu]

You've missed the point.

 

5L defends the pilot against the claim of the passenger.

 

Society accepts that going into the air is an action that involves risk of injury. Jumping into the air from a trampoline is risky. Returning any sort of flying machine to the ground is risky. The "obvious risk" would relate to anything other than incompetency in piloting, or criminal action (low flying, unqualified pilot flying into adverse meteorological conditions, flight manoeuvres outside the performance envelope of the aircraft, deliberate flight into land or sea.

 

OME

 

 

[cscotthendry]

You've missed the point.5L defends the pilot against the claim of the passenger.

OME

OME:

That is what I got from your post. If you fly an RAA registered aircraft, you will have a big notice somewhere (supposed to be in plain view of the pax) to the effect that flying is dangerous and our aircraft are not constructed to GA safety standards and that you fly with me at your own risk...or words to that effect.

 

 

[jetjr]

The person in that event was a student not just s member of public.

 

 

[facthunter]

The placard is on all aircraft, clearly visible. That's why it's a required item. All the same, Judges and Coroners continue to display their limited knowledge of matter s aeronautical, in some of their pronouncements. Nev

 

 

[johnm]

Thanks OME

 

...................... if I am ever in front of the man with the dead sheep skin on his cranium - I'll remember 5L

 

 

[old man emu]

OME:That is what I got from your post. If you fly an RAA registered aircraft, you will have a big notice somewhere (supposed to be in plain view of the pax) to the effect that flying is dangerous and our aircraft are not constructed to GA safety standards and that you fly with me at your own risk...or words to that effect.

It is not only RAA aircraft. This applies to all aircraft. Actually, it applies to carriage in any vehicle, or on any animal when the activity is "recreational"

 

Go for a ride as a passenger in a 4WD doing some bush bashing - 5L applies.

 

Go for a horse ride on a borrowed horse - 5L applies.

 

Go for a speedboat or jet-ski ride - 5L applies.

 

Facthunter,

 

On my reading of the judgement, I came to the conclusion that the Judge correctly directed himself to the crux of the matter.

 

I had some involvement in the evidence of one of the expert witnesses, and I am aware of some of the Plaintiff's claims and Defendant's replies. The Judge addressed the Plaintiff's claims and accepted that the cause of the engine failure was immaterial, but was the "materialisation of an obvious risk". Engines, being a machine, break. That's common knowledge.

 

He accepted that, because of the speed at which airplanes contact the ground on landing, there is an element of danger in landing an airplane at any time. Don't forget that the plane was under controlled flight until the moment the wheels touched the ground. It was unfortunate that the plane ran into a gully on its landing roll. Can you identify a gully in a grassy paddock from circuit height?

 

I think the Judge applied his, perhaps limited, aeronautical knowledge quite soundly. He wasn't fully on the Defendant's side and had some adverse comments to make, but on the Point of Law, he was quite correct.

 

OME

 

 

[facthunter]

OME my comment is general. Not applicable in this case as you point out. It is not reasonable to expect legals to be expert on aviation matters but I have had a bit to do with investigations over the years and I know the people who really know what is going on are mostly the pilots up at the pointy end, who suffer from the inadequacies of the system. Legals should seek clarification when needed..

 

Todays Airline management have never generally been so unaware of the realities, as they are now, and I don't think they are that interested. It just gets too complex for them to get into their accountants mind that just goes on costs $$$. Just do as I tell you and carry less fuel , more unserviceabilities etc. When the $#!T hits the fan the pilot is responsible. Fatigued ?? You must be unfit or too old. (nothing to do with the clock banging away each hour next door at your crook Pub) Nev

 

 

[turboplanner]

Another ploy would be to own nothing. There was a lot which I think were selling family trusts with the idea that this put your assets beyond litigants reach.If I sell the house then I may put the new one in the wife's or kid's name for this reason, and the same with some other stuff. I could claim that I lost my share at the pokies.

Is there any case history on whether this works?

No, check the various prisons.

I think it's a serious criminal offence to hide or reduce assets.

 

 

[turboplanner]

OME my comment is general. Not applicable in this case as you point out. It is not reasonable to expect legals to be expert on aviation matters but I have had a bit to do with investigations over the years and I know the people who really know what is going on are mostly the pilots up at the pointy end, who suffer from the inadequacies of the system. Legals should seek clarification when needed..Todays Airline management have never generally been so unaware of the realities, as they are now, and I don't think they are that interested. It just gets too complex for them to get into their accountants mind that just goes on costs $$$. Just do as I tell you and carry less fuel , more unserviceabilities etc. When the $#!T hits the fan the pilot is responsible. Fatigued ?? You must be unfit or too old. (nothing to do with the clock banging away each hour next door at your crook Pub) Nev

That's been corrected in the transport industry with Chain of Responsibility laws, where if the driver is coerced into, say, cutting back on rest time and has a fatigue related accident, the boss is charged, and if he is responding to a demand for unreasonable delivery time, his customer is charged. This has made quite a difference in many areas including the type of truck specification used.

 

 

[turboplanner]

The kicker is that very last phrase.This is where the lawyers would try to get you by claiming that something you did was negligent. It might be that you didn't do a proper preflight, that you took some risk that a competent pilot would not etc.

I think I read on this forum that the guy who hit the Ferris wheel has had a claim against him which in part said something like the conditions on the day were beyond his capabilities.

 

And now days there is even an extension out beyond the victim. After that Cessna 206 skydiving plane went in a few years back and killed skydivers one of the passengers relatives sued the pilot for the psychological trauma even though the relative was not part of any of the consent and acceptance of risk and the victims had obviously consented to accept the risk.

 

Personally I don't take anyone for flights anymore except other pilots who fly home builts and my partner who knows the whole story of flying home builts and risk.

 

The other thing to take into account is the earning potential of the passenger. Crash and kill or maim a doctor or lawyer and they or their estate will sue for the lost earnings which could be gazillions. Whereas kill a garbo or an unemployed brickie and the lost earnings will be substantially less.

That's what Public Liability Insurance is for, and you can specify the level of cover you think you need; less for quiet local airstrips, more if you fly into CTA or around Dash 8s where you could collect the jackpot if you took one down.

 

 

[Chird65]

... family trusts with the idea that this put your assets beyond litigants reach....Is there any case history on whether this works?

No, check the various prisons.I think it's a serious criminal offence to hide or reduce assets.

Not giving advice but;

So long as the trust was set up correctly, so it protected the individual Beneficiaries and not just the one person, there is no Criminal Intent.

 

 

[facthunter]

To dispose of assets under circumstance where it is done to avoid paying liabilities anticipated is not Playing the Game. Like trading while insolvent. Nev

 

 

[Chird65]

To dispose of assets under circumstance where it is done to avoid paying liabilities anticipated is not Playing the Game. Like trading while insolvent. Nev

Correct, but if there is no Liability nor any intended Liability then protecting others Assets is playing the game.

 

Example in our case. Pilot has an accident and a 3rd party is affected. 3rd party goes after the Estate (Pilot could be still alive). If the Trust was set up to protect the spouses and children's assets before the accident then it was not primarily set-up to avoid this liability.

 

 

[facthunter]

Like setting up an incorporated body with limited liability. Nev

 

 

[turboplanner]

Correct, but if there is no Liability nor any intended Liability then protecting others Assets is playing the game.Example in our case. Pilot has an accident and a 3rd party is affected. 3rd party goes after the Estate (Pilot could be still alive). If the Trust was set up to protect the spouses and children's assets before the accident then it was not primarily set-up to avoid this liability.

Which leave the part we were really talking about, which is if he does it AFTER the accident, or if he starts transferring cars and boats into his wife's name, or selling them off for $10.00 with a wink etc. the authorities will spend a lot of time tracking his assets.

 

Better to have PL insurance.